Citation Nr: 0123686
Decision Date: 09/28/01 Archive Date: 10/02/01
DOCKET NO. 00-14 981 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to service connection for low back disability.
REPRESENTATION
Appellant represented by: Maryland Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1950 to
December 1952.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal of an April 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Baltimore, Maryland.
REMAND
Initially, the Board notes that during the pendency of the
veteran's appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. Regulations implementing the VCAA (codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001)), are now published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) (to be codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). The VCAA and
the implementing regulations pertinent to the veteran's claim
are liberalizing and are therefore applicable to the issue on
appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
The veteran contends that he sustained a minor injury of his
low back injury in service, which he believes resulted in
simple back strain. He asserts that he began to experience
episodes of dull low back pain in approximately the middle of
1952. He believes that his duties as a cook in service,
which involved heavy lifting, contributed to his low back
problems.
The veteran's service medical records were apparently
destroyed by fire at the National Personnel Records Center.
His representative has requested that a search for
alternative records be undertaken. However, to date, the
veteran has not alleged that he received treatment for his
low back during service.
The post-service medical evidence of record includes a
February 1984 statement from J. S. Siegel, D. O., which
indicates that he treated the veteran from 1958 to 1979 for
intermittent lumbosacral strain and nervous exhaustion.
Also of record is a September 1986 statement from Rita
Brinker, D. C., which indicates that she treated the veteran
from 1952-53 for an unstable low back and that the veteran
was then referred back to his personal physician for further
treatment.
Additionally, a January 2000 statement from Jack L. Murray,
D. C., indicates that the veteran had been under his care
since 1982 for spinal complaints and that the veteran had
previously been under the care of Dr. McKenzie. He further
reported that the veteran gave a history emotional and
physical problems since August 1951 when he was involved in
an explosion on an obstacle course which left him semi-
conscious. Dr. Murray also expressed his opinion that it was
possible that the veteran's physical problems were related to
the accident in 1951.
Although the foregoing medical statements relate to low back
treatment from 1952 to 2000, the earliest of the statements
is dated more than 20 years following the veteran's discharge
from service. In the Board's opinion, actual treatment
records from these health care providers could be of greater
probative value than the statements submitted thus far.
The record reflects that the RO informed the veteran that it
would obtain treatment records on his behalf if requested to
do so. Although the veteran has not requested the RO to
obtain treatment records on his behalf, his representative
has requested the RO to obtain pertinent treatment records
but the RO has failed to comply with that request.
Finally, the Board notes that the veteran has not been
provided a VA examination to determine if he currently has a
low back disability which is etiologically related to
service.
In light of these circumstances, the Board must conclude that
further development is required to comply with the VCAA and
the implementing regulations. Accordingly, this case is
REMANDED to the RO for the following actions:
1. The RO should request the veteran to
provide current addresses for Rita
Brinker, D. C.; J. S. Siegel, D. O.; J.
L. Murray, D. C.; and Dr. McKenzie. He
should also be requested to provide the
names, addresses and approximates dates
of treatment or evaluation for any other
health care providers who have treated or
evaluated him for any low back problems
since his discharge from service. When
the requested information and appropriate
authorization have been received, the RO
should attempt to obtain a copy of all
indicated records which are not already
of record.
2. If the RO is unable to obtain a copy
of any records identified by the veteran,
it should so inform the veteran and his
representative and request them to
provide a copy of the outstanding
records.
3. The RO should also request the
veteran to indicate whether he received
any treatment for his low back during
service, and if so to provide information
concerning the circumstances of the
treatment, to include the locations and
approximate dates. If the veteran
alleges treatment, the RO should
undertake any indicated development to
obtain alternative service records, such
as morning reports.
4. The veteran should then be scheduled
for a VA examination by a physician with
appropriate expertise to determine the
nature and etiology of any currently
present low back disability. Before
completing the examination report, the
examiner must review the claims folder,
including a copy of this Remand and any
evidence added to the record. Any
indicated studies should be performed.
With respect to each currently present
disorder of the veteran's low back, the
examiner should provide an opinion as to
whether it is at least as likely as not
that the disorder originated during
service or is otherwise etiologically
related to service. The supporting
rationale for the opinion must also be
provided.
5. Then, the RO should ensure that the
above development has been completed in
full and should undertake any other
development it determines to be required
to comply with the VCAA and the
implementing regulations.
6. Then, the RO should readjudicate the
veteran's claim. If the benefit sought
on appeal is not granted to the veteran's
satisfaction, he and his representative
should be furnished a supplemental
statement of the case and be afforded the
requisite opportunity to respond. The
case should then be returned to the Board
for further appellate consideration, if
otherwise in order.
By this REMAND the Board intimates no opinion, either legal
or factual, as to any ultimate determination warranted in
this case. No action is required of the veteran until he
receives further notice.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Shane A. Durkin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).